Will CERCLA Allow Water Entities to Recover Response Costs From Pharmaceutical Companies?

Abstract

Public concern over the effects of prescription medications on the country's potable water system has grown in recent years. As the debate over the impact of pharmaceuticals continues, the Supreme Court of the United States is considering a case that could allow water entities, water rights holders, or states to recover “response costs” from the suppliers of pharmaceuticals under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. (CERCLA). The Court heard oral arguments in the case, Shell Oil Co. v. United States (Case No. 07‐1607), which were heard in conjunction with Burlington Northern & Santa Fe Railway Co. v. United States (Case No. 07‐1601), at the end of February 2009. Although the primary issue in the Shell case is the apportionment of liability for contamination caused by a soil fumigant, also at issue is the “useful product” defense. This defense has been used by defendants in CERCLA actions to avoid liability when a manufactured product is eventually disposed of following use. A decision by the Court to limit the availability of the useful product defense could leave pharmaceutical companies more susceptible to liability for contamination to water supplies caused by prescription drugs.